Who owns water? Does anyone? Labour today announced its freshwater policy, prompting us to republish Kirsty Johnston's report from May this year.

It was the summer of 1983 when Poroti Springs first ran dry. The watercress stopped growing, the eels disappeared and the koura died, unable to survive as their habitat turned to dust.

Local hapu, the kaitiaki of the sacred Northland springs, were dismayed at the near-extinction of its mauri, or life-force, and the loss of their traditional food source.

The culprit? The Whangarei City Council, who, unable to get to the springhead because it was on Maori land, had drilled directly into the aquifer upstream and sucked up so much water for the town supply, the seemingly endless flow ran out.

• READ MORE: Giving away our water: 1c for 3000 litres


So began one of the most bitter battles in New Zealand's war for water, and a case at the heart of water rights arguments now reaching boiling point in communities nationwide.

"Poroti is a perfect example of why there needs to be an urgent conversation about water in this country," says Green MP Catherine Delahunty, a long-time freshwater campaigner.

"The relationships and rights there under both Maori and Pakeha law were clearly established. If you can trample on Poroti you can trample on anywhere."

Central to the Poroti case - and dozens of others around New Zealand - is the issue of water ownership - and whether foreigners should be able to take water for free.

Currently, common law dictates that naturally-flowing freshwater is treated as a public good, or that "no one owns the water".

Poroti's Pera Edwards at the dried up stream in 1983. Photo/ Northern Advocate archive
Poroti's Pera Edwards at the dried up stream in 1983. Photo/ Northern Advocate archive

As such, there are no charges for water in New Zealand, only for infrastructure - like the maintenance of the pipes that bring it to your house - or for resource consent application and monitoring fees paid to regional councils by water users such as farmers, horticulturalists or bottlers. (However, to complicate things, charges are often based on a per-litre rate).

Water is allocated under the Resource Management Act (RMA). The water "take" is usually a set amount per day, or year, and often has a flow limit attached, to ensure too much is not removed from the source at once.

Recently, however, there have been several challenges to that management model - most notably by environmentalists; iwi; and increasingly, a public angry about bottled water exports.


Many of the arguments have gone hand-in-hand with the idea that commercial users should pay a fee.

No one owns the water - or do they?

The environmental argument is probably the most well-known. Water quality advocates say large takes from rivers or underground aquifers are both depleting, and polluting resources.

In rivers like the Selwyn in Canterbury, drought combined with ongoing irrigation has seen the flow at extremely low levels over summer.

Combined with dairy "run-off" - the leaching of nitrates and phosphates into waterways - this has upset the delicate ecological balance in the waterway and in some areas, left it polluted.

Environmentalists argue there needs to be better management to ensure water quality is preserved.

Environmentalists say heavy water users such as farmers should also be charged a fee.
Environmentalists say heavy water users such as farmers should also be charged a fee.

The iwi challenge centres on the unresolved issue of Maori rights to freshwater. While the Crown mantra remains "no one owns water", many Maori disagree, citing the customary rights they exercised pre-colonisation.

Further to that, a 2012 Waitangi Tribunal decision found in some cases Maori also had proprietary rights, or ownership rights. The Tribunal has yet to produce its final report setting out how the Treaty rights may be recognised in modern circumstances.

In any case, Waitangi Tribunal rulings are not binding and the recommendations may be dismissed.

However, the Chair of the Maori Council Eddie Durie, who took the claim, said the council's hope was that any recommendations would pave the way for some kind of royalty fee - part of which could go to iwi to assist in their role of protecting the waterways.

"For us, it's not a question of 'nobody owns water' it's more that everyone owns water," he said. "And then there are public interest and then commercial interests and then we say there is also Maori interests - and that interest is not being provided for."

Mr Durie said current provisions in law - which required Maori to be consulted in their role as kaitiaki - was not enough, and they wanted stronger recognition.

"Some in government may think these things can't be owned. We say they can be owned under our law and we want authority - mana - over them."

Where are bottling companies taking water? Explore:

Note: Some figures were not provided in time for publication.

Water bottling: "An unfair equation"

The third challenge over water ownership is more recent. Unease at the increasing number of water bottling companies - particularly foreign-owned companies - has led to protests around the country over the corporate use of water.

Figures obtained by the Herald found there are now 73 companies with consent to take up to 23 billion litres a year, for an average annual fee of just $200 each.

On a volume basis, that works out at one third of a cent per cubic metres of water (1000 litres). In comparison, an Auckland ratepayer is charged $1.40 per cubic litre by council, with the rest of the country paying anywhere from 70 cents to $3 to tap into their local supply.

"Basically, the companies are getting the same water but paying bugger all for it," says water campaigner Jen Branje, from the group Bung The Bore. "It's an unfair equation."

Bung the Bore's Jen Branje presenting their petition calling for a moratorium on fresh water exports, to Labour water and environment spokesman David Parker at Parliament.
Bung the Bore's Jen Branje presenting their petition calling for a moratorium on fresh water exports, to Labour water and environment spokesman David Parker at Parliament.

Branje was instrumental in organising a 16,000 strong petition on parliament over bottled water exports earlier this year. She also helped bring to light the planned sale of a piece of land owned by Ashburton District Council with an annual right to 40 billion litres of water. It was eventually canned.

Central to the argument against bottling is the idea that corporates are taking some of the country's purest water - often from deep aquifers - while many local communities are left with unsafe drinking water.

For example, the Havelock North water outbreak, when thousands of people contracted a gastro bug from contaminated water in 2016, came amid public outcry at the presence of several new water exporters in the region - Hawke's Bay now has 11 operators, who pay no annual fees.

Green Party MP Catherine Delahunty hosts a public forum on water in Napier.
Green Party MP Catherine Delahunty hosts a public forum on water in Napier.

In Hurunui, north of Christchurch, parts of the community have such poor quality water they are on permanent boil-water notices, a situation exacerbated by frequent drought.

Resident Colleen Johnson, who began a Facebook page for locals to air their complaints, says it was frustrating that at the same time private companies could take water.

"I think as New Zealanders we should have first priority. The high quality water should be coming to us," she said. The popularity of Johnson's page proved she wasn't alone, she said.

"I think it's dawning on people that water is a necessity of life and it's genuinely under threat."

"We have no say over it"

At Poroti, half an hour west of Whangarei, the main argument rests on an extremely strong claim to a proprietary right. However, it also involves a tangled web of government, farmers and most recently, a water bottled.

A Waitangi Tribunal report released last year described the history of Poroti. Three local hapu now known as the Whatitiri Trust - Te Urioroi, Te Parawhau, and Te Māhurehure - were vested the springs and surrounding two acres by the government in 1896 to ensure a water supply for their people.

In addition the water source held special significance for the hapu, who believed in the spring's healing powers and therefore were bound to protect its mauri (life-force).

However, it was also of interest to the Whangarei council as the high quality water made it for a town drinking supply. Unwilling to find a better source, it drilled into the aquifer on the edge of the Maori land in the 1970s, and during the drought of 1983, refused to stop taking water until the spring ran dry.

Koketai Edmonds, left, along with Milan Ruka and Hona Edwards, gathering kai from the Poroti Springs.
Koketai Edmonds, left, along with Milan Ruka and Hona Edwards, gathering kai from the Poroti Springs.

After that catastrophe - and a similar incident in 1987 - the council was told by a special tribunal to close the bores above the springhead. By then, it had already moved downstream, where alongside the newly-formed Maungatapere Water Company Limited, a consortium of farmers and horticulturalists, it gained a new water take consent.

The hapu were not invited to share in the consortium, frustrating them as they were cut out of a share of an anticipated $15m per year in revenue. Despite believing they had ownership of the springs, and a right to the water that then flowed into the stream, the Waipao, it was no longer theirs.

Then, in 2004, the bore site above the springhead - which was supposed to have been closed for good - was sold for $40,000. The buyer was a water bottling company named Zodiac Holdings, which now has a consent to take up to 365 million litres a year. The company is yet to take any water itself, instead building a website aimed at marketing the resource to China.

"We are now at the point where the whole spring is allocated - over allocated - for another 30 years," said Whatitiri spokesman Millan Ruka. "And we have no say over it."

He said the hapu has always been willing to share the water, as long as the mauri was protected, and it was able to have some input over what was taken. Instead, their water seemed likely to head offshore, and the viability of the spring was again under threat.

"We find it abhorrent that we are now back to square one where our springs are again going to be tapped at the bore site, and that Zodiac are marketing to sell the consent and lands to Chinese investors."

When the water bottling petition was presented at parliament calling for a ban on exports earlier this year, Environment Minister Nick Smith labelled it "farcical". (It was later referred to a working group by Prime Minister Bill English and remains under consideration).

Smith's argument was that bottled mineral water exports last year totalled nine million litres of New Zealand's annual water resource of 500 trillion litres - just a tiny percentage. Others have argued that in comparison, the irrigation take is much larger and it's more important to focus on that.

The numbers
The numbers

All water is not equal

However, freshwater ecologist Mike Joy, from Massey University, says the problem with that analysis is that it assumes that water not being used is otherwise being wasted.

"But it's not. Water is doing stuff - it's running rivers, keeping fish alive, powering dams," he said. "The rivers do need that water. Compare it - you could take a litre of blood out of your body a day and for a while it would be ok. But eventually it would have an effect."

It also assumed all water was equal, he said.

"But only a tiny proportion is good enough to bottle. And as cases like the Havelock contamination proves, that amount is getting smaller and smaller."

Joy pointed to UN research that showed by 2030 the world will only have 60 per cent of the water it needs as evidence water was an increasingly valuable commodity.

"Every other country would be saying, these idiots are giving their water away."

Frustrated with the government's efforts - and the perceived failures of the Resource Management Act - a group of water activists including Joy, Branje and some iwi have turned their attention to forming better solutions.

 Dame Anne Salmond is calling for
Dame Anne Salmond is calling for "creative ideas" on new ways to manage water.

At the forefront is an idea first suggested by Maori, and since built on by Dame Anne Salmond, distinguished professor at Auckland University currently working on water quality issues.

Salmond believes that the government has upheld only one part of the common law on water - that it can't be owned - when in fact there is a second part which says that one person's use of water must not disadvantage another.

Salmond believes that rather than being owned by no one, water is owned by all, and as such should be put in trust, and the trust upheld by a Waterways Commission to ensure everyone's rights - including iwi rights - are looked after.

A Commission should be able to charge royalties, to fund restoration projects, she said.

"At the moment people seem to be saying proprietary rights are the way to go, but I'm saying there is another way," she said.

"At the moment there is a lot of head-banging, finger-pointing, blame-shifting, a lot of unpleasant rhetoric. There needs to be something creative out there instead, to be explored by all parties."

While popular with water activists, so far the idea has received limited political support.

Labour's water spokesman David Parker was in agreement that large commercial users should be charged for water, but wasn't sure a commission was necessary.

Greens spokeswoman Catherine Delahunty said she wasn't sure water should be removed from the RMA, but also agreed on the introduction of pricing.

New Zealand First has previously stated it would support fees for exporters.

Nick Smith did not comment on the idea.

The breakdown
The breakdown

Charging for water: Not everyone agrees

Federated Farmers water and environment spokesperson Chris Allen said charging was not a road it wanted to go down.

"All you'd be doing is putting a huge tax on every New Zealander," he said. "There is no problem with everyone using water if we use it responsibly."

However, Allen did say there was a difference between farmers and bottlers - in that farmers "added value" to the water they used by putting resources back into the community.

The New Zealand Beverage Council president Olly Munro argued it would be wrong to charge for the use of water for bottling while allowing other resource holders to continued to extract water without those same charges being applied.

However, he said the council did not support the bulk extraction of water from New Zealand, as that would "rob" the country of the additional employment and tax provided by locally-packed products.

Munro said he was hoping any conversation would recognise bottlers' contribution to the economy.

"The bottled water industry has been one of the few industries to boost employment in regional and remote areas where it is a vital source of economic security for local communities."

Whatitiri trust members have long protested the use of their sacred spring
Whatitiri trust members have long protested the use of their sacred spring

At Poroti, hapu have now been told if they want to share in the water, their only avenue is the Resource Management Act, which allow for a variety of joint management agreements.

What that means in practice is going cap-in-hand to the consent holders and asking to share in some of the allocation. A meeting with at least one user, the Whangarei District Council, has been agreed.

However the hapu lack faith in the RMA, and for good reason. A 2016 report for the Waitangi tribunal found Poroti provided "an illuminating case study" of the failed promise of the RMA for a kaitikati community.

"That is because of the gulf between the Māori association with and mana over the springs, on the one hand, and what little the RMA has delivered, on the other."

The springs were seen by others solely as a road to profit - by the horticulturalists, the bottlers, and the council, who were "seduced" by the perceived economic benefit of the factory and the business it would bring the local port.

"[But] what place has there been for Porotī Māori in this gold rush?"

Ruka says despite that, the hapu will persist.They are also seeking changes to Zodiac's consent so the spring flow rate must stay above a certain level - to ensure that if they do eventually take water, it will not run dry again.

The main issue for the hapu is that it all takes time. Even the Waterways Commission, which they think is a good idea, is too far away for their liking. The dream for the hapu is an eel nursery and some aquaculture in the Waipao, that allows them to make money for the people, but it is currently impossible.

"We could still be talking about this in 10 years. It drains you. It's so draining on our people," Ruka said.

"It's killing us."

Who has the rights.
Who has the rights.